Unallotment in the Courts

Now that the Governor has announced some unallotment specifics, those taking the fiscal hit – especially local governments – might be examining whether there is any way to prevent unallotment.  Yesterday, the Star Tribune reported on Common Cause’s complaint about zeroing out the political contribution refund program.  The article doesn’t really get to the heart of the matter, though: is this unconstitutional or illegal?

The most common analogue is the practice of “impoundment” at the Federal level.  All Presidents did it to some degree, but Richard Nixon took it to another level, refusing to spend Clean Water Act funds even after Congress over-rode his veto of the program.  In Nixon’s practice, impoundment/unallotment functioned as a “super-veto” which effectively removed Congress’ “power of the purse.”  Impoundment was included among the articles of impeachment against Nixon, and several court cases started to challenge the practice.  Unfortunately for constitutional law, Nixon resigned and the Ford administration declined to press the issue.  Congress passed an amendment to the Anti-Deficiency Act to forestall any future Nixonian attempts to kill programs by sitting on allocated funds.  The court cases either became moot through Ford’s release of funds or were decided narrowly on program-authorization grounds. 

In our situation, the Minnesota Governor is not acting in a vacuum – there is a statute permitting unallotment that has already passed a constitutional review.  It’s still a fair question, though, whether the Governor is operating within the confines of the statute or has, like Nixon, taken this to a new level.  After all, just about every President back to Jefferson engaged in some form of “unallotment,” Nixon changed the game by basing his spending refusals on policy objections, not just financial balance.  Where Gov. Pawlenty’s budget plan falls along the line between “programmatic deferral” and “policy deferral” is likely still the central question to answer in determining the propriety of the Governor’s planned cuts.

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Court of Appeals 06.23.09

The Court issued a published opinion on cartway establishment in today’s round of opinions.  Breaking new ground in one of the quainter corners of municipal law, the Court held that a town must route a cartway to a useful part of an owner’s property, not just the shortest and cheapest route to the lot line.  The opinion is refreshingly short, but the recitation of facts is a good example of how even a diligent study process can lead everyone away from what seems like an obvious answer.

In its unpublished opinions, the Court affirms that absolute legislative privilege applies to all types of boards, councils and official bodies when they’re in open session (another page in the Middle-Snake-Tamarac Rivers Watershed saga). The Court also issued a rash of opinions (at least 3) touching on DWI source code – all of which affirm the District Court’s decision, whether that was to deny or approve the motion.  Is the Court of Appeals intending to punt until the Supreme Court comes up with something more definitive?  We’ll have to see.

Segregating Uses is Bad for Everyone

From the Pioneer Press, the  results of design proposals for the Johnson Boat Works site in White Bear Lake are underwhelming, to say the least.  The City’s development authority, which had hoped to retain ownership of the site and serve in the role of property manager, estimates annual losses on each of the three proposals.  A key factor behond the loss?  The City refuses to allow a residential component as part of a proposed design, preferring to keep this as a typical office/retail block. 

We could go into all of the walkability/sustainability/design reasons why this is a bad decision, and make this a regular old post.  As it turns out, though, including a residential piece in this development is the only way any proposal has shown a positive cash flow.  Maybe this will be another area where good ideas languish until someone figures out they can make money with said good idea, and then it takes off.

It’s arguable that nothing should be built at the moment, but that’s the way that Met Council grants work (this project on page 45 of the PDF).

Court of Appeals 06.16.09

It’s been a slow week for court opinions involving municipal law (though not a slow week for municipal news, with LGA cuts leading the way).  Of the last week’s opinions, perhaps the one to highlight is a labor-law decision which finally holds a public official accountable for something – in this case, totally and completely ignoring the law.  Good to know.

Public-Private Partnerships, Revisited

The New York Times takes another look at some of the big public-private infrastructure deals discussed in a previous post on this site.  Not surprisingly, existing deals face public backlash, especially where the privatization has raised the obvious, upfront cost of doing things (like putting quarters in the parking meter).  The credit crunch and bad public reaction have caused several other deals to fall apart.  What remains to be seen is whether this reversal of momentum is simply a function of the current economy (the implied point of the NYT article) or gelling public-policy opposition to these kinds of proposals.

Supreme Court 06.04.2009

The Court denied review of Veit USA v. Sherburne County, ensuring that the matter will go back to the County Board for more hearings and a new decision.  The Court of Appeals reversed and remanded Sherburne County’s decision to deny a CUP for expansion of an aggregate mine/demolition landfill.  Chief among the reasons supporting reversal was the finding that the use could comply with adequate conditions – here 37 conditions were suggested but not implemented.

60-day rule case scheduled next week

The Supreme Court has added an argument day next week – the last argument of the term – to hear the Lakeland/DNR variance approval case.  Here is the issue summary from the Court:

On appeal to the supreme court, appellants raise three issues: (1) does the 60-day rule found in Minn. Stat. § 15.99, subd. 2 (2008), apply to a contested case hearing governed by the Administrative Procedures Act; (2) does a contested case hearing toll the 60-day rule and when does such tolling end; and (3) did the administrative law judge’s notice that the Commissioner had 90 days to issue a decision extend the 60-day deadline under Minn. Stat. § 15.99, subd. 3(f) (2008). 

I have not read the briefs yet, but issue #3 sounds like the main event here.  Argument is set for 9 AM, Wednesday, June 10 in Courtroom 300 of the Judicial Center.